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Senate argues against release of audit records

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The Arizona Senate doesn’t have to produce records for its election audit because they aren’t in the physical custody of the chamber, the Senate’s attorney said Wednesday in court.  

Maricopa County Superior Court Judge Michael Kemp heard oral arguments today in the public records lawsuit brought by liberal watchdog group American Oversight against Arizona Senate President Karen Fann, Senate Judiciary chairman Sen. Warren Petersen and the Arizona Senate. 

The group sued in May, seeking a bevy of records from communications between Senate audit liaison and former Secretary of State Ken Bennett and people involved in planning and executing the audit, contracts between the Senate, Cyber Ninjas and other third-party vendors. They’re also looking for records related to the budget and funders of the audit, plans about the audit’s operations and plans for direct voter contact, but the group was met largely with responses that the requested records were not in the Senate’s possession. 

Since then, the group has received some records – emails to-and-from Fann, service agreements with groups providing security and other communications. The Senate has released about 1,200 pages of records, attorney Kory Langhofer, who’s defending the Senate, said. He said that about 15,000 more documents are being reviewed for release as long as they’re not found privileged or confidential. 

“That’s what the Public Records Act requires and that’s what the Senate is doing,” Langhofer said. “What we’re litigating here is additional set of documents: documents that are not in our custody and that are only available to the vendors.” 

However, the Senate has released little more in regards to its contractors, nor does it intend to.  

Langhofer said that because these other records are in the physical custody of the Senate’s third-party contractors, not the Senate itself, they’re not subject to public records laws. 

Attorneys for American Oversight said that kind of interpretation would gut the statute.  

“Those documents need to be produced; otherwise, the public record statute will have a gigantic loophole that agencies can drive a truck through that will shield them from permitting the public to know what the government is up to,” American Oversight attorney Keith Beauchamp said. “No matter which side of the political aisle you’re on, that’s a bad thing.”  

Kemp noted the public doesn’t know the cost of the audit.   

“Mr. Langhofer, isn’t the public entitled to know who was paying for this, what President Fann referred to as ‘constitutional and legislative function,’ this important constitutional duty, isn’t the public entitled to know who’s paying for this? Besides the $150,000 that the senators already appropriated?” Kemp asked. 

Langhofer said that the public is entitled to “know the information that’s in records that the public records law requires to be produced,” adding that the Public Records Act is the only basis for the public’s claims to records, not the state constitution or common law.  

“That’s a great political argument,” he said. “They should talk to the legislature about it.” 

Kemp said he would have a written ruling in seven to 10 days. 

Last week, The Arizona Republic filed a special action in Maricopa County Superior Court seeking financial records and communications about the audit. The Senate has moved to consolidate the two. 

Senate says lawmakers not subject to public record laws

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Senate President Karen Fann is taking the position that Arizona courts cannot force her or any other member of the Arizona Legislature to comply with the state’s Public Records Act.

In a new court filing, attorney Kory Langhofer who represents the Prescott Republican and the entire Senate, is asking Maricopa County Superior Court Judge Michael Kemp to throw out a claim by a self-described nonpartisan watchdog group to get access to all documents and materials related to the Senate’s audit of the 2020 election results.

Langhofer said the Senate has or will produce documents in its possession. Ditto with those in the possession of Ken Bennett who was tapped by Fann to be her liaison with Cyber Ninjas, the private company hired to conduct the audit.

The only exception, Langhofer said, are those which are protected as privileged or confidential.

He said, though, what American Oversight wants are documents that are in the hands of Cyber Ninjas or other companies it has, in turn, hired as subcontractors.

Langhofer said the Public Records Act does not apply to private companies. And he rejected arguments by attorney Roopali Desai that the records are public because the only reason Cyber Ninjas got the materials in the first place was because they were subpoenaed by the Senate.

But Langhofer has a backup legal argument just in case the judge does not read the scope of the Public Records Act as narrowly as he does. He told Kemp he has no jurisdiction in the fight.

The Arizona law spells out that public records and other matters in the custody of any officers “shall be open to inspection by any person at all times during office hours.”

Langhofer concedes that the Senate is a “public body” and lawmakers are “public officers” who, in any other circumstance, would be covered by the law.

Only thing is, he said, they are not subject to it.

“The Arizona Constitution entrusts each house of the Legislature plenary power to order its own internal procedures and affairs,” Langhofer wrote.

More to the point, he said even if there is a question — a point he is not conceding — courts are powerless to determine if lawmakers need to comply with the laws they enacted.

“Statutory measures (such as the Public Records Act) necessarily subordinate to this constitutional function,” Langhofer wrote. “Allegations concerning the legislature’s compliance with them present nonjusticiable political questions.”

If the courts agree, that would do more than leave American Oversight without a legal remedy. It also could set the stage for setting a new precedent which could leave all Arizonans powerless to use the Public Records Act to demand everything from legislative documents to letters sent to lawmakers and texts they send and receive.

But Dan Barr, attorney for the First Amendment Coalition, said he believes courts will reject any effort by Fann and her legal adviser to rule that lawmakers need not comply with the Public Records Act. He said they are clearly public officers.

“I don’t buy this notion that even though the state legislature, passing the public records law, didn’t have the power to bind itself to the law,” he said. “That’s sort of nuts.”

And Barr said that while Langhofer is relying on the constitutional provisions allowing lawmakers to set their own rules, the laws on public records actually predate the 1912 Arizona Constitution.

He also brushed aside claims that courts have no right to tell another co-equal branch of government how they have to behave.

“The (U.S.) Supreme Court decided years ago … about courts having authority to tell other branches of government what they can and can’t do,” Barr said.

“Courts strike down statutes all the time,” he said. “Courts rule on actions taken by the governor all the time.”

The lawsuit, filed last month, does not seek access to the ballot themselves.

Maricopa County turned them over under subpoena. And they are not public records.

And Fann already has made public the contract documents between the Senate and Cyber Ninjas.

But the lawsuit says at least part of what is missing are any contracts involving third-party vendors that the Senate directly or indirectly retained through Cyber Ninjas.

Desai also wants any records reflecting the audit’s budget and any external funding that may have been received.

Fann has told Capitol Media Services the only thing she knows about is the $150,000 that the Senate has agreed to pay.

That clearly is not covering the cost of the audit which has now been going on for months. And the America Project, started by a millionaire who says the election results were fraudulent, is trying to raise $2.8 million “to support and pay for expenses of the Maricopa Audit.”

It was founded earlier this year by Patrick Byrne, the former CEO of overstock.com. Byrne, in an interview earlier this year with ntd.com, said he was setting up the organization to continue the fight over the 2020 election results.

“It was a fraudulent election,” he told the television network. “It didn’t end for us on Jan. 20.”

So far the group, operating a site at “fundtheaudit.com,” says it has raised more than $1.9 million.

Fann said she has been promised there will be an accounting at the end of the audit. But questions remain as to how much will be made public.

The American Project was set up under a section of the Internal Revenue Code as a “social welfare organization.” That means it is not legally required to disclose the names of the people who donate.

Desai said her contention that the records being sought from Cyber Ninjas and the other contractors are public are buttressed by statements made by Fann.

The Senate president has said that the purpose of the audit is not to overturn the election results that showed Joe Biden defeating Donald Trump. Instead, Fann said, senators want to examine how the balloting process was handled, at least in Maricopa county, giving information to senators to decide whether changes need to be made in laws governing the conduct of future elections.

That, Desai said, makes everything the Senate — and its contractors — are doing to accomplish that goal a matter of public records.

Langhofer, however, said Kemp has no choice but to dismiss the case.

“When adjudication of a claim will entail incursions into the internal domain of the legislature or executive, respect for those coequal branches necessitates dismissal,” he said. And Langhofer said if there are questions, then they have to be resolved within the branch of government itself or, ultimately, by the people who elect them.

A hearing on the issue is set for next month.